Deman v Sheffield University & Anor [1999] UKEAT 1067_98_1005

EAT
Deman v Sheffield University & Anor
[1999] UKEAT 1067_98_1005 · 1999-05-10
MR JUSTICE LINDSAY: We have before us as a Preliminary Hearing the Appeal of Mr Suresh Deman in the matter Deman against 2 Respondents, Professor I Gow and secondly, the University of Sheffield. We are grateful to Mr Stuart, who has appeared by way of the ELAAS system and has addressed us on behalf of Mr Deman today. There was a hearing before the Industrial Tribunal in Sheffield on 8th June and 9th June 1998. The matter had been scheduled to take 3 days. That left the third day, Wednesday 10th June, as a convenient day for the Tribunal to discuss the matter in chambers, which is what they did. The decision was promulgated on 15th July 1998. It represents some 20 close-typed pages and the decision, which was unanimous, was as follows:
"The unanimous decision of the Tribunal is that the Applicant was not discriminated against on the grounds of race and his application fails."
Mr Deman, who is of Indian ethnic origin, had applied for two jobs at the University, the job of Senior Lecturer and as a Lecturer in the University's School of Management, within the School's division of accounting and financial management. He was interviewed and he failed to get either job and he launched his IT.1. His evidence at the Tribunal included a number of features which are worth mentioning. First of all, he said that a rival of his for one of the jobs had been invited, as he had not, to dinner with some officers of the University on the night before the interview. That rival, he said, had had a convivial dinner and, according to Mr Deman, that rival had been forewarned as to questions he might be likely to be asked at the interview on the very next day. But on that subject the Employment Tribunal held that the University had not known where Mr Deman was staying the night before the interview; that, had it known, he would have been invited to dinner, as was the usual practice of the University, and, looking at our page 26(vi), the Tribunal held further, that at the dinners to which two of the Applicants were invited there was no talk or discussion of the interviews due to take place the following day, nor was any candidate forewarned as to the nature and type of questions likely to be asked. So the position there was was that Mr Deman's evidence was, so far as one can tell, disbelieved or, at any rate, that given on the University's part was preferred. The Tribunal was conscious of the sensitivity in inviting some but not all to such a dinner and they dealt with that in their para 21 on our page 28, but nothing of a discriminatory nature relative to that particular event was found to be the case and given that Mr Deman's evidence had not been preferred on the subject it is difficult to see how he can make any complaint there: complaint, that is, of a kind that can concern us, namely a complaint of error of law.A second area which the Tribunal dealt with was this, that the Appellant before us, the Applicant below, Mr Deman, had alleged that whilst he, Mr Deman, was still waiting to go in for his interview a man whom he has later identified as Professor Gow of the University in the First Respondent went to congratulate a rival candidate on getting the job. All this, it is said, even before Mr Deman had gone in for his interview. The Employment Tribunal did not accept that version of events. Again, it was a case of the University's evidence being preferred to that of Mr Deman. What the Tribunal held in their para (viii) on our page 27 was that Professor Gow did not congratulate "C" (that was the letter used to describe a rival) prior to the Applicant's interview nor did he do so in the presence of or within earshot of the Applicant. He did so after the Applicant had long left the building where the interview took place, after the choice had already been made and after first obtaining the consent of the Panel.So far as concerns the interview itself, Mr Deman's case was that matters had been put to him (I am looking now at para 7 on the foot of page 20) and that the questions were posed to him were, however, aggressively put, with some hostility; it was not simply a case of the questions being difficult, awkward or searching. That would have been acceptable, he says, and would have presented him with no real difficulty. Indeed, it would have been no more than he would have expected. The manner in which the interview was conducted, however, led him to believe that there was a more insidious agenda. He quite frankly believes that he was a victim of racist discrimination. There could be no other explanation, as far as he was concerned, because his qualifications and track record were such, he believes, as made any alternative suggestion highly unlikely. On that subject, the Tribunal held (looking at para (ix) on page 27) that the interview with the Applicant was carried out in a perfectly normal manner and no hostility was shown towards him by anyone on the Panel. So, again, the evidence of Mr Deman was not preferred; the evidence of the University was preferred.Another allegation concerns Mr Deman saying that Professor Gow had said "We are looking for builders, not destroyers". The Professor acknowledged that he had said such words but that they were being taken out of context by Mr Deman. Again, the Tribunal dealt with the point (looking at page 27, para (x)). Professor Gow's utterance of the words "Wanting builders rather than destroyers" was made in response to the Applicant's own remarks, he saying that he could destroy anyone if he were a member of the Panel.Another allegation is that Mr Deman alleged that Dr Demirag had apologised to him for the manner in which the interview had been conducted and, specifically, as to Professor Gow's remarks. That was dealt with in the conclusions of the Tribunal at (xii) on page 27. Dr Demirag did not apologise specifically for any utterances or acts of any individual members of the Panel at the interview with Mr Deman but he did, knowing Mr Deman's dissatisfaction, attempt to defuse the situation by being conciliatory and, further, he suggested to the Applicant that his perception of the way things had gone and how things stood was inaccurate. Again, therefore, the evidence other than of Mr Deman was preferred.As to the interview and the selection process more generally, the Tribunal held, looking at their para 19,
"However, we are quite satisfied on the whole of the evidence that Mr Deman's application was treated on its merits and in an even handed way and that whilst he had been chosen and short-listed for interview, that was on the basis of an application and a CV which in itself, looked relatively impressive. However, at the interview, we are quite convinced that the Applicant did not measure up to that CV and disappointed the Respondents partly because he wanted to focus on the wrong issues and partly, because he reacted in a way which suggested to the Panel that he would be an inappropriate candidate for the post."
A little later, they continued:
"We have no doubt had that Mr Deman being of the desired quality he would have been chosen, irrespective of his race or colour. Indeed, it is perhaps not insignificant that one of the lecturers appointed was an Indian."
And then, in their para 20 they say:
"Overall, we are quite convinced that Mr Deman was not in any way discriminated against and that selection for the post he sought was made purely on merit."
Any thus it was that in their last paragraph they said:
"The Applicant's claim fails. He was not treated any differently or less favourably because of his race, colour or nationality."
It is, of course, not easy for the Appellant to launch an appeal against a background of the case being that, on the facts, his evidence had not been preferred on a number of central issues. Mr Deman and, of course, Mr Stuart recognises that what they have to find in order to succeed here, even to go forward to a Full Hearing, is to find some arguable error of law with some describable prospect of success.The skeleton argument (which, in a sense has been overtaken by events because Mr Stuart has slimmed it down) as it originally stood said:
"My grounds for Appeal are that the Industrial Tribunal misdirected themselves in law in that they wrongly failed to apply the second principle given by Lord Justice Neil in King -v- The Great Britain China Centre "
and then they quote that principle and, then, continuing with the Skeleton, it is said that despite those words of Lord Justice Neil, the Sheffield Industrial Tribunal failed to consider some words of Peter Kenneth Elles, Dean of the Faculty of Society Sciences when he was giving evidence. Mr Elles, who was the Chairman of the Interview Panel had said:
"We felt that Mr Deman was more of a loner and would not engage well with other people. We were concerned at the interview whether he would work well with the team and also, generally, as to how he would fit within the school."
The skeleton continued:
"In failing to consider these remarks of Mr Elles' the Industrial Tribunal erred in law in that they should have assessed their evidence in the light of the second principle in King -v- The Great Britain China Centre. The failure to do so was a misdirection."
Now it is true that the Employment Tribunal does not especially mention those words of Mr Elles, but one cannot take it from the mere fact that they did not mention them that they had not got them in mind. The Tribunal was aware of Mr Elles' evidence because they say (on our page 25, at para 17):
"As for the Respondents we have heard from a number of highly educated, qualified and intelligent people who were competent within their academic field the Chairman of the Interviewing Panel was the Dean of Faculty in question."
Mr Elles was that Dean. Nor is there any necessary racial content in Mr Elles' comment. One can plainly fail to "fit in" for a whole body of reasons other than a supposed reason related to race, and, indeed, when one sees the whole of the quotation from Mr Elles, one does, perhaps, get a fuller picture. We have that on page 10 at para 9. What Mr Elles was saying in the written statement that was handed to the Employment Tribunal was this:
"Following the interview the Panel discussed the Senior Lectureship position straightaway. Mr Deman did not seem the person we were looking for. His attitude towards teaching did not impress the Panel. The Panel had also tried to establish the area of Mr Deman's financial expertise which had found difficult . We also discussed that if he was appointed at Senior Lectureship level, he would have to have Junior Lecturers who would need guidance and nurturing working with him."
Now coming to the quote at which the complaint was made:
"We felt that Mr Deman was more of a loner and would not engage well with other people. We were concerned at the interview whether he would work well with the team and also generally, as to how he would fit within the school. Essentially, during the discussion the consensus which emerged was that he was not well-enough equipped for a job as a specialist in the finance area. In contrast, it was felt that the other candidate had the necessary qualities for the position of Senior Lecturer specialising in finance within the accounting division. This candidate's research had developed over the last few years and he had produced quite a large number of recent publications in the finance area. The type of work he does seemed more in line with the division's requirements."
It seems that, looking at that paragraph as a whole, one gets a quite different feeling for the remark that Mr Deman was a loner and might not fit within the school. The matter was presented as a matter in which he was regarded as a loner in academic terms rather than in racial terms.Moreover, the Tribunal had the King case in mind. They say in their para 14:
"Mr Purnell referred us to the case of King -v- The Great Britain China Centre and also the more recent case of Zafar -v- The Glasgow City Council. Indeed, Mr Purnell read extracts from the Judgment of Lord Justice Brown-Wilkinson referring, in particular, to comments made earlier in the case of Khanna -v- The Ministry of Defence and Chattopadhyay -v- Headmaster Holloway School."
Moreover, the sense of the decision in King is set out again in para 14. The Tribunal said:
"As Mr Purnell rightly perceived at the outset of the hearing cases of discrimination on race or sex grounds are particularly difficult to prove. Few respondents are prepared to admit that they have discriminated against a complainant and very often the complainant finds it difficult to gain support from others to substantiate claims of this sort, for a number of reasons. This is the sort of case, said Mr Purnell, which requires the Industrial Tribunal to look carefully at the facts and the background and be prepared to draw inferences from established facts. If those inferences raise a presumption that discrimination may be abroad then it is incumbent upon the respondents to provide good and sound explanations in rebuttal. The matter then has to be weighted up by the Tribunal to see whether those explanations, given the background and circumstances, are sufficient to dislodge the inferences in the case."
And then the quotation ran on with the mention of King cited above and in their para 16 the Tribunal again shows their consciousness of the point. They say:
"However, having said that, we are conscious of the decision in King and in Zafar and we readily acknowledge that if the facts suggest that inferences can be drawn we should not be slow to draw those inferences, mindful of course, that we should only draw those inferences when it is appropriate to do so. We should not however, be over cautious about doing so. We way that because we readily acknowledge how difficult it is for applicants in cases of this nature."
We detect no error of law in the treatment of the King principle.A second ground raised in the original skeleton read as follows:
"The decision of the Industrial Tribunal was contrary to the evidence and/or there was no evidence to support the decision."
That allegation, it seems to us, is quite hopeless. There seems to have been a very careful weighing up of the evidence given by quite a number of witnesses. The Tribunal evidently preferred the evidence of the University side. That is their province. They saw and heard the witnesses in full. Mr Deman identifies no finding as to which their was no evidence whatsoever and, on that second heading, we find no error of law. It is fair to say that it is not an aspect of the case that Mr Stuart has pushed on Mr Deman's behalf.The third original ground read as follows:
"My IT.1 clearly states my claims of discrimination and victimisation yet the Industrial Tribunal did not consider at the Hearing. The Tribunal was wrong in law by not considering my claim of victimisation in relation to subsequent actions of the Respondent for not hiring me even for a research post."
Victimisation, of course, is only a particular form of discrimination. (See the Race Relations Act 1976.) There is no description in the Tribunal's decision of whatever particular "protected act" was being asserted by Mr Deman. His IT.1 has not identified one. But the conclusion of the Tribunal was a broad one, as we have cited from their para 20. To remind ourselves, it says:
"Overall, we are quite convinced that Mr Deman was not in anyway discriminated against and that selection of the post he sought was made purely on merit."
That conclusion on the evidence that Mr Deman was not anyway discriminated against, of course, excludes victimisation. Mr Stuart has drawn attention to an alleged failure to draw inferences and has helped Mr Deman in that way, but we regard the drawing of inferences as a subject particularly best left as it has been by the legislature, to the Tribunal. It is a difficult area. They had the leading case of King in mind. They not only refer to it but they refer to the sense of it and we detect no error of law in relation to any failure to draw inferences.Mr Stuart draws attention to the fact that Mr Deman had applied for 2 jobs and yet only had one interview. He had no second interview for the lesser job. But, in practical terms ,it must be very common for one interview to serve to evaluate a person for more than one job and, in any event, here there is no indication that evidence was given that suggests that such a practice was either unusual or was discriminatory. We thank Mr Stuart for his concision. He has concentrated on the better parts of Mr Deman's case but, even so, we are unable to find any error of law in this matter and accordingly, must dismiss the matter even at the interlocutory or preliminary stage.